Opinion: Who Made Amazon the Judge of What's Legal on the Web?

[This post originally appeared on Joseph Galarneau's blog and is republished here in Cloud Computing Journal (www.CloudComputingJournal.com) by kind permission of the author.]

When you visit Newsweek.com, the words you read started their journey milliseconds earlier from an Amazon.com datacenter somewhere in northern Virginia. And if you visited Wikileaks.org earlier this week, the bytes comprising leaked U.S. embassy cables would have traveled a similar path from Amazon servers based in northern California or Ireland.

While WikiLeaks and Newsweek are very different organizations, we both relied on the 21st century equivalent of the printing press – cloud computing – to distribute our information. Amazon shut off WikiLeaks servers Wednesday, citing the company’s violation of Amazon rules, coincidentally at the same time government officials called for similar action for different reasons. For now, the site is hosted in Sweden by another company. Another part of WikiLeak’s technology – its domain name servers -- came under attack by hackers a day later, prompting another provider to cancel WikiLeak’s account and forcing the company to use a Swiss DNS provider.

The power of the press can be dramatically limited when the power to the press is disconnected. Outside the newspaper industry, few publishers actually own their own printing presses. U.S. courts rarely exercise prior restraint (orders that prohibit publication), and most printers rely on their customers to shoulder the legal liability if there are disputes. But as Amazon’s silencing of WikiLeaks demonstrates, the rules can change when media companies move on to the Internet, with its very different methods of publishing.

Nearly five years ago, Amazon popularized cloud computing by launching Amazon Web Services (AWS) to leverage the technology expertise gained by building its mammoth e-commerce website. In a matter of minutes, anyone with a credit card can visit the AWS website to rent time on Amazon servers, use storage on their disk drives, or select from an array of other high-tech services. Catering to hobbyist hackers and Global 2000 IT departments alike, AWS is now estimated to generate more than $500 million from hundreds of thousands of customers, according to industry analyst Kamesh Pemmaraju, director of cloud research at the SandHill Group.

The cloud computing business model, which permits customers to rent servers for as low as 2 cents per hour, has allowed countless dot-coms to avoid spending millions in start-up costs. Media companies have been similarly intrigued by these pay-as-you-go services, which are also offered by IBM and Microsoft, among others. At Newsweek, we started using AWS in late 2009 and moved all of our web operations to Amazon last May when the website launched a new design and content management system. As one of the first major publishers to go “all in” on the cloud, we have been very pleased with Amazon’s technology and service: Newsweek has experienced significant technology savings and is able to more easily accommodate large spikes in traffic that accompany major news events. (Full disclosure: I have spoken about Newsweek’s experiences at two Amazon-sponsored conferences this year and recently met with Amazon senior management. Additionally, Newsweek’s legal agreements and private discussions with Amazon are covered by a non-disclosure agreement).

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But as part of Newsweek’s journey to the cloud, we thought about the same issue that tripped up WikiLeaks. In its 77-year history, the magazine has often published confidential or leaked government information. Amazon’s publicly available contract with AWS customers, which WikiLeaks likely agreed to, states that Amazon can turn off a website if “we receive notice or we otherwise determine, in our sole discretion” that a website is illegal, “has become impractical or unfeasible for any legal or regulatory reason … (or) might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity.” Has Amazon anointed itself as judge, jury and executioner in matters of regulating content on its services?

First, it’s important to understand that Amazon is delivering a commercial service and isn’t bound by free-speech protections that apply to the actions of governments, according to First Amendment attorney Michael Bamberger, a partner at law firm SNR Denton. If you don’t want to be subject to their rules, don’t use their services and don’t sign their contract. Amazon and its peers have legitimate business reasons for shutting down websites: many nefarious types use their services for spam, child pornography, hacking, and pirating activities. Not only are these activities illegal, but many threaten the integrity of the services delivered to other law-abiding cloud customers.

In Amazon’s statement on the WikiLeaks incident, posted on its website Thursday, said “our terms of service state that ‘you represent and warrant that you own or otherwise control all of the rights to the content… that use of the content you supply does not violate this policy and will not cause injury to any person or entity.’ It’s clear that WikiLeaks doesn’t own or otherwise control all the rights to this classified content. Further, it is not credible that the extraordinary volume of 250,000 classified documents that WikiLeaks is publishing could have been carefully redacted in such a way as to ensure that they weren’t putting innocent people in jeopardy.”

But should there be anything for cloud computing companies to fear? Federal law doesn’t hold hosting providers liable for information-related crimes committed by their users, no more so than a phone carrier would be subject to legal action due to a customer making a harassing call. There are gray areas untested by caselaw, Bamberger added. “If the posting is a criminal act, which the WikiLeaks materials may be given the claimed national security implications,” he said, “the service may have a legitimate fear of being charged with aiding and abetting despite federal law.”

Newsweek, like many news organizations, extensively reviews its content prior to publication to ensure accuracy and adherence to the law. Editors take these duties seriously, given that our stories reach nearly 20 million people in print and 10 million online around the world each month. Even so, some people, companies and governments aren’t thrilled when they appear on Newsweek’s print and digital pages, and they rarely keep their discontent to themselves. Protests range from letters to the editor to lawsuits, with a variety of non-legal responses in between. Calling Newsweek’s printers and asking them to stop the presses would have little effect: our agreements with vendors make Newsweek solely responsible for what is printed.

Ultimately with Amazon, we agreed on mutually acceptable terms that would protect our editorial independence and ability to publish controversial information. Other media executives who use cloud computing have told me they baked in similar protections into their contracts. But Newsweek is an established media company that has more clout and resources than the average start-up. How would the next incarnation of the Pentagon Papers be handled if it were published by a lone blogger instead of The New York Times?

“Technology has changed a lot,” Bamberger said, “and it’s really hard to tell who is the press today. That whole issue is very amorphous.

The opinions expressed here are solely the author's and do not necessarily reflect the viewpoints of Harman Newsweek LLC.

Joseph Galarneau (@jdgalarneau), a former journalist, is COO of Newsweek and GM of Newsweek Digital. The opinions expressed here are solely the author's and do not necessarily reflect the viewpoints of Harman Newsweek LLC.

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